Posted by on September 14, 2020

Washington, DC -- Americans for Safe Access (ASA), the leading medical cannabis advocacy organization dedicated to ensuring safe and legal access to cannabis (marijuana) for therapeutic use and research, with the pro bono support of attorneys in Goodwin’s cannabis and appellate practice groups, filed an amicus brief  in support of the petition for certiorari filed in the matter of Washington v. Barr. The ASA amicus brief highlights the plight of medical patients who face numerous restrictions in accessing and using medical cannabis. 

The case was brought on behalf of five plaintiffs, including 14-year-old legalization activist Alexis Bortell, Iraq War Veteran Jose Belen, and nine-year old Jagger Cotte – three plaintiffs whose treatment with cannabis keeps them alive. Alexis, Jagger and Specialist Belen, must carry their medical cannabis with them at all times, and therefore cannot legally enter onto federal land and cannot travel by air or other federally-regulated modes of transportation. Alexis has also been limited in terms of which schools she can attend; she is required to travel 90 minutes a day to and from her high school, as no local school will accept her due to her need to treat with medical cannabis.  She also was the only student in her middle school class who was ineligible to sign up for a planned class trip to Washington, DC this past spring; because it would be illegal for her to step foot onto federal property, Alexis just couldn’t go. Worse Alexis, Jagger, and Specialist Belen all live in constant fear that their medication may someday be taken from them and that they (or, in the cases of Alexis and Jagger, their parents) will be arrested.

Michael Hiller, lead counsel for the plaintiffs and a former professor of constitutional law whose law firm, Hiller, PC, is handling the case pro bono, is hopeful that the U.S. Supreme Court will accept jurisdiction of the appeal, even though few such petitions are granted.  “The confusing and unsettled nature of cannabis law has reached a breaking point, warranting resolution by the Court,” said Mr. Hiller.  In particular, Hiller pointed to the “the disparity between state and federal law, the conflicting decisions among the courts,” “the millions of Americans who depend on medical cannabis to keep themselves healthy and alive,” and the “tens of billions of capital invested by cannabis businesses throughout the country to mass produce a product, the legality of which is completely unclear.”

The legal premise for the lawsuit is that the classification of cannabis under the CSA as a Schedule I drug is unconstitutionally irrational and violates plaintiffs’ fundamental rights to equal protection under the law, substantive due process and to preserve their health and lives through treatment with life-saving medication. The nearly 100-page complaint points out that, in order to be classified a Schedule I drug under the CSA, a substance must be found to have no accepted medical applications, and be too dangerous to treat with -- even under medical supervision. Yet, over 70% of U.S. jurisdictions have legalized cannabis for use in medical treatment, rendering the federal government’s position that there is no accepted medical use for cannabis in the U.S., according to plaintiffs, utterly irrational. 

“I’m very grateful to Goodwin and particularly Brett Schuman, Jennifer Briggs Fisher, Andrew Kim and Nick Costanza for working with ASA on this important brief,” said Debbie Churgai, executive director of Americans for Safe Access. The Court’s decision will have a lasting impact on the millions of patients with debilitating illnesses across the country that rely on cannabis to relieve their suffering.” 

Brett Schuman, who leads the Cannabis Practice at Goodwin, stated “We’re very proud to have been retained by ASA to file this amicus brief.  The petition for certiorari presents an important constitutional question that the Second Circuit improperly side-stepped by essentially referring the petitioners’ constitutional challenges to an agency (the DEA) that can’t and won’t decide those questions. The Supreme Court should allow these constitutional challenges to be addressed in the federal courts.”